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Posts Tagged ‘The Legal Watchdog’

On Monday, the U.S. Supreme Court unanimously ruled that government, in this instance, the U.S. Patent and Trademark Office (PTO) may not refuse to register potentially offensive names under a law against registering trademarks likely to disparage people or groups.

The case, Matal v. Tam, strengthens the case against state bar associations seeking to further trample lawyer First Amendment rights via ABA Model Rule 8.4(g). For more about the ABA’s misguided decision “to discipline lawyers who engage in politically incorrect speech,” see “The ABA’s Control Over What Lawyers Say Around the Water Cooler.”

The Nevada Bar, for one, has petitioned its state supreme court to adopt a new lawyer speech code to punish Nevada attorneys for what newly weaponized lawyer disciplinary authorities subjectively deem “derogatory,” “demeaning,” or “harmful” speech“related to the practice of law.” Matal v. Tam renders the viewpoint discrimination enshrined by such a proposed rule presumptively unconstitutional.

Nonetheless, how much ultimate weight state supreme courts give to Matal v. Tam on such matters will depend on the jurists’ ability to temper the agenda-driven viewpoint of lawyers as sui generis ‘special snowflakes.’ Under this rubric, lawyers are expected to unreservedly pay for their ‘privilege’ with constraints on their Constitutional rights not visited upon any other profession.

Whether as agents of the state, i.e., ‘officers of the court,’ or as “public citizens” as the ABA Report describes them, lawyers are expected to tolerate the continued erosion of their rights, especially with respect to the First Amendment. See here, here, here and here and additionally, The Intersection of Free Speech and the Legal Profession; Constraints on Lawyers’ First Amendment Rights. It’s way past time for lawyers to say “Enough!”

Matal v. Tam.

In 2011, Simon Tam, the founding member of the Asian-American dance-rock band, The Slants, tried to register the band’s name with the PTO. His application was denied based on a federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a).

Tam characterized his trademark registration as an attempt to reclaim a slur and use it as “a badge of pride.” Associate Justice Samuel Alito wrote, “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Student free speech.

Writing today at “The Legal Watchdog,” notable Wisconsin defense attorney Michael Cicchini trenchantly points out at “Free speech: A message for public universities (and their students) how Matal v. Tam should help curb free speech constraints currently the rage among do-gooding bureaucrats at public universities. Quoting from the opinion, Cicchini illustrates how There is no hate-speech exception to the First Amendment;”  “You can’t suppress speech you don’t agree with;” and “You should be thankful that you can’t suppress speech you don’t agree with.” His entire post bears reading.

Finally, some have inanely suggested the case is one for folks on the Right to applaud, e.g., “Today in Conservative Media: Applause for a Free Speech Victory at the Supreme Court.” To which, I rejoin, when did the U.S. Constitution and specifically, our fundamental rights become the exclusive purview or calling of one side of the political spectrum?

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Photo credits: Seal of the U.S. Supreme Court, by DonkeyHotey at Flickr Attribution; “sad emoticon,” by shamaasa  at Flickr Attribution; “Resusci-Annie’s Children Remark On the Effectiveness of the First Amendment,” by John Scalzi at Flickr Attribution.

 

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Had I waited another day, I could’ve added one more head shake to my last post. Last night, the Arizona Republic reported Jodi Arias prosecutor Juan Martinez would not be disciplined over the publication of his book about the Jodi Arias murder trial.

Several bar complaints were separately filed against Martinez last year in connection to the internationally notorious murder case. In its story, the Republic makes particular mention of the bar complaint filed by the local defense lawyer bar that in part accused Martinez of violating ethical rules regarding “the existence and content of certain exhibits previously sealed by court order.”

There’s little doubt the complaining defense lawyers aren’t pleased with the decision of the Arizona Supreme Court’s Attorney Probable Cause Discipline Committee. The Committee reviews Arizona State Bar recommendations for attorney discipline.

It is also a group which parenthetically happens to have a petition pending before the Arizona Supreme Court that would permit the imprudent entrenchment of its current membership by removing the two consecutive three-year limitation on members’ terms of office.

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According to the news report, the Committee dismissed a charge filed against Deputy Maricopa County Attorney Juan Martinez for writing the book, Conviction: The Untold Story of Putting Jodi Arias Behind Bars.

The story quotes from the Committee’s decision, “This matter is being dismissed as respondent obtained permission from his employer to disseminate information relative to his representation in the state v. Arias case. Similarly, while his book made general reference to the existence of sealed testimony and exhibits, the references did not contain specific content and was, in some circumstances, publicly available despite the court order(s) sealing the testimony and exhibits.”

Interestingly, demonstrating that book writing about a trial is not the sole province of the prosecution, Arias’ former defense lawyer Kirk Nurmi was disciplined over an ethical violation involving publication of a ‘tell all’ book without client consent, Trapped with Ms. Arias: Part 1 of 3 From Getting the File to Being Ready for Trial.  However, in Nurmi’s case, the sanction was disbarment. See “Jodi Arias’ defense lawyer agrees to be disbarred over tell-all book rather than face disciplinary hearings”

There’s an ethical rule, ER 1.9, that prohibits a lawyer who has formerly represented a client in a matter from thereafter using information relating to the representation to the disadvantage of the former client except as permitted by the ethical rules “or when the information has become generally known.” The trick, of course, comes in defining what is “generally known.”

The rule is not without its critics, one of the most notable being Michael Cicchini. Also see Cicchini’s “On the Absurdity of Model Rule 1.9,” 40 Vermont L. Rev. 69 (2015) and his “Petition to Modify SCR 20:1.9(c).” filed last year with the Wisconsin Supreme Court

File:"As we see 'em," a volume of cartoons and caricatures of Los Angeles citizens (1900) (14773300391).jpgVagaries of Proportionality.

There are rules governing the imposition of lawyer discipline. But when it comes to when and how those rules are applied, weighted, and especially how sanctions are proportioned remains anybody’s guess. One wonders, for instance, if another lawyer similarly situated but less well-known than Martinez would have received the same pass on discipline?

No less than the Arizona Supreme Court has recognized that when it comes to reviewing similar cases to assess the proportionality of the recommended sanction, proportionality review is “an imperfect process.” In re Owens, 182 Ariz. 121, 127, 893 P.3d 1284, 1290 (1995). This is because no two cases “are ever alike.” Id

Frankly, there are times when the sanction meted out appears to bear little resemblance to so-called similar cases. See, for example, the disciplinary case of Edward Moriarity where pursuant to a settlement the accused attorney was disbarred in Arizona — a sanction no other reciprocal jurisdiction opted to follow. Indeed, the sanction was subsequently criticized by a federal judge as noted in Board of Prof’l Responsibility v. Moriarity 345 P.3d 51 (2015). Also see “Wyoming Supreme Court Censures Montana Attorney.”

After reviewing the attorney’s notification of the Arizona disbarment, Judge Dana L. Christensen, Chief United States District Judge for the District of Montana, issued an order declining “to impose any discipline at this time. However, if the Montana Supreme Court decides to levy discipline, this Court will revisit the matter at that time.” Moreover, Judge Christensen discussed “substantial reasons not to order identical discipline” not the least being that it “was grossly disproportionate to Moriarity’s alleged misconduct.”

To further make his point, the judge cited an earlier case where the Arizona Supreme Court had suspended an attorney for six months after the attorney was found to have filed multiple frivolous actions over the course of several years whereas by contrast, Moriarity was disbarred on the accusation of having filed “only one frivolous lawsuit.”

To protect not to punish.

File:Stuart Chapin and Company (3093686330).jpgHas there ever been a disciplined lawyer — let alone a zealous bar counsel prosecutor — that hasn’t deemed the sanction imposed a punishment? The state supreme court, however, steadfastly demurs reflexively noting it “has long held that ‘the objective of disciplinary proceedings is to protect the public, the profession and the administration of justice and not to punish the offender.’” Alcorn, 202 Ariz. at 74, 41 P.3d at 612 (2002) (quoting In re Kastensmith, 101 Ariz. 291, 294, 419 P.2d 75, 78 (1966).

All the same, one can’t help but be reminded of the oft-quoted spare-the-rod-spoil-the-child sop: This hurts me more than it hurts you.” Like sanctions ‘to protect not to punish,’ the words are counterintuitive cold comfort for those on the receiving end.

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Photo Credits: Dog gif “Really,” at Giphy.com; “As we see ’em,” at Wikimedia Commons;“As we see ’em,” at Wikimedia Commons; Building gif, at Giphy.com; Stuart_Chapin_and_Company_(3093686330).jpg at Wikimedia Commons, public domain.

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https://cdn.morguefile.com/imageData/public/files/a/almogaver/preview/fldr_2008_11_07/file000136151699.jpgYesterday, Arizona took one more step toward reforming the way lawyers are regulated in the state. By a vote of 31-29, the Arizona House passed HB2295. This bill splits the State Bar of Arizona into two subsets. One preserves the mandatory membership character in order to function as an independent regulatory quasi-agency that makes paramount the protection of the public from unethical lawyers. The other subset becomes a voluntary organization that engages solely in the kinds of non-regulatory activities more traditionally associated with professional trade associations. It’s worth watching the HB2295 floor debate here starting at the 3:34 minute mark.

A conflicted identity.

Politicians 81Like mandatory bars elsewhere, the Arizona Bar suffers from what former Wisconsin State Bar President Steven Levine once described as “a schizophrenic identity.”

In a just published post at The Legal Watchdog, Wisconsin lawyer, blogger, author and scholar Michael Cicchini mentions the article, State Bar’s limits on financial transparency create budgetary blind spots (subscription required) where author James Briggs writes that “The State Bar straddles a line between being a state agency, under the jurisdiction of the Supreme Court, and a private corporation, which is not compelled to share financial information even with the people elected to govern it.” The author then quotes Levine on the Wisconsin Bar.

FunHouse 119But Levine could just as easily be referring to Arizona’s Bar while talking about Wisconsin, “When it comes to the advantages of being a state entity . . . they claim to be a state agency.  But when they want to act in private or in secret and avoid all public requirements state agencies are required to follow, they say they’re just a private organization.”1

Case in point when I filed a public records request last July with the State Bar of Arizona asking for lobbying expenditure disclosures concerning its opposition to bar reform legislation, the Bar’s response included the following lawyer doublespeak: “However, without waiving our right to assert any future objections applicable to a nonprofit organization either by rule or statute, this organization believes in transparency and will provide answers when possible.”

arizona_bar_frank2

Can’t serve two masters or walk around with two heads.

Two hats for two heads.2

By deunifying the regulator/trade association functions, HB2295 solves the longtime problem the State Bar of Arizona has been burdened with, which is trying to serve two masters by wearing two hats for two heads. The result has been an irreconcilable conflict of interest. Why? Because the interests of the public and the interests of lawyers are not the same. More often than not, they are in conflict.

Consequently, the State Bar should not simultaneously serve the interests of the public and the interests of the legal profession. If it truly means to protect the public, then the interests of the public have to be foremost. Because HB2295 separates the State Bar’s regulatory and disciplinary functions from the State Bar’s trade association services and activities, it improves the protection of the public from lawyers who violate the canons of professional ethics.

Moreover, by dividing the regulatory and disciplinary functions from its lawyer trade association activities and transferring all regulation to the Arizona Supreme Court, HB2295 helps to bring lawyer regulation more fully compliant with the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. FTC.

In Dental Examiners, the nation’s high court ruled that state regulatory bodies controlled by “active market participants” – such as practicing lawyers -­ are not immune from federal antitrust laws. The solution then, as provided under paragraph B of HB2295 is “active supervision” by the state Supreme Court or by an independent body under the Court — not controlled by practicing lawyers. Despite the recent work of a Court State Bar task force, the State Bar of Arizona continues to operate under a lawyer-dominant governing board elected by lawyers.

HB2295 now moves to the Arizona Senate where the State Bar of Arizona hopes its lobbyists and well-paid executives can sustain a firewall sufficient to stop the spread of reform.

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1 Some 14 years ago, in a First Amendment suit against the State Bar of Arizona brought by former bar member Edmund Kahn, the U.S. District Court for Arizona in an unpublished opinion discussed whether a state bar was entitled to Eleventh Amendment immunity. The Arizona Bar, which usually asserts it’s a private association not a state agency, tried in this instance to hide behind the Eleventh Amendment by claiming a “level of integration between the State Bar and the Arizona Supreme Court.” The Court distinguished the cases the State Bar invoked, which were Bates v. State Bar of Arizona involving lawyer discipline; Hoover v. Ronwin concerning bar exams and another discipline case in O’Connor v. State of Nevada. The District Court stated that when it comes to cases that generally challenge either the state bar’s disciplinary function or its function administering bar exams and admitting new lawyers, “the state bar clearly acts as an arm of the Arizona Supreme Court in regulating the practice of law.” But the District Court next made a most critical distinction, “In this case, Plaintiff challenges the way in which the state bar spends mandatory dues on non-regulatory functions and the bar’s procedures for addressing objections to its spending. Because this suit challenges the bar’s spending on non-regulatory programs, the link between the state bar and the Arizona Supreme Court is more tenuous.” The Court then went on to declare that the State Bar, a “non-profit corporation” did not qualify as a state agency for Eleventh Amendment purposes because among other factors, it also maintained “its own treasury and any award of damages would come from the state bar’s funds rather than the state treasury.”

2 Cartoon inspired by a bar executive’s email reference to a lawmaker last session counterintuitively overlooking the Bar’s own 800 lb Chimera in its parlor when describing a bifurcated state bar as “Frankenstein.”

 

 

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https://i1.wp.com/cdn.morguefile.com/imageData/public/files/s/sideshowmom/preview/fldr_2005_04_20/file0002043695191.jpghttps://i1.wp.com/cdn.morguefile.com/imageData/public/files/s/Seemann/11/l/14170495919qjki.jpgProving there are turkeys after Thanksgiving, a couple of career law school académicos opined in Black Friday’s Washington Post championing “low-bono” legal services so that “talented young lawyers will devote an early stage of their career to communities in need.”

William Treanor, Georgetown Law Center Executive Vice President, Dean and Professor of Law, and Jane Aiken, Vice Dean, Associate Dean (Experiential Education) and Professor of Law at the same school, are the noblesse oblige promoters of that well-worn access to justice idea. The glut of new, unemployed young lawyers, they reckon, can charge “affordable fees” so that working people earning too much to qualify for legal aid can obtain legal representation.

https://upload.wikimedia.org/wikipedia/commons/thumb/0/09/Ivory_Towers_-_geograph.org.uk_-_1650865.jpg/180px-Ivory_Towers_-_geograph.org.uk_-_1650865.jpgSince most people can’t afford to hire a lawyer, low-bono is a laudable enough idea — even if it comes from a pair of insular ivory tower inhabitants who from their CVs appear not to have any experience running their own law practices where they had to make their monthly nut.

This lack of real-world client-contact lawyer experience, however, is hardly disqualifying for Ivory Tower residency, as my buddy The Legal Watchdog has often pointed out. And so they blithely declare,“While pro-bono work is offered for free, the low-bono models provide adequate financial support for attorneys.” So much for the cursory conjecture of the comfortably clueless.

Young business man standing pulling his pockets inside out uid“Lower-income residents who don’t qualify for free legal aid but can’t afford lawyers suffer devastating consequences in court,” they complain citing the sad tale of a sixty year-old widow evicted from her home. “And yet even as they fall, unrepresented, through the cracks, we keep hearing about a glut of unemployed lawyers, many of them recent law-school graduates,” as though vaguely remembering a regurgitated classroom abstraction. Harder to ignore is the haughty self-serving skepticism, “we keep hearing about a glut of unemployed lawyers.” This must mean if they don’t believe it — it must not be true.

The reality is that for some time, it’s been well documented that new lawyers graduate with “soul crushing, crippling” six-figure debt. Indeed, the financial obligations are so humongous that it’s impossible for them to service those loans without a reasonably paying job. And while the economy has improved since the depths of the recession, good paying law-related work is still hard to come by. So it’s hard to conceive how jobless, low-income or no income recent law school graduates straddled with over $150,000 in debt will be in any position to “devote an early stage of their career to communities in need” when they themselves are card-carrying members of those communities.

You’d think these two well-placed high level Georgetowners would know better. Or that they’d concede at least to save face, that law school graduate debt is no abstraction — especially at Georgetown. According to the latest US News & World Report, Georgetown University  is 12th on the list of “Which law school graduates have the most debt?” with an average 2014 graduate indebtedness of $150,529 and with 79% of its grads with debt.

Any news from the jungle? | by HikingArtist.com

But unfortunately, with very few exceptions, law school professors, deans and administrators would rather not acknowledge the elephant-sized schools vs. students conflict of interest or the post-graduate employment risks and high cost realities of attending law school. As Pulitzer Prize winning NY Times writer David Segal famously wrote 4 years ago: “Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.”

Being very smart, though, I have no doubt there’s one reality they can’t ignore: “Fewer and Fewer Students Are Applying to Law School.” Also see: “Enrollment at Law Schools Continues to Decline.”

In the end, the solution, which they will eventually come to albeit not quietly and not before some law schools close will be an approach along the lines just recommended for universities by Washington Post business columnist Steven Pearlstein. He advocates greatly improving productivity, cutting overhead and lowering the overall tuition cost. See “Four tough things universities should do to rein in costs.”

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Grape eating contest | by denverkid

Proponents also speciously called the whole thing an “authorization” to increase dues and not a dues increase. And a “kick me” sign is not an inducement for a foot to the backside.

So citing oaths, obligations, and the special snowflake status of lawyers, the petitioners hoped to add Florida to the list of jurisdictions such as Minnesota and Wisconsin where as a condition to practice, state supreme courts tax lawyers to fund civil legal services. The other states that impose mandatory civil legal aid assessments are Indiana, Illinois, Texas, Missouri and Pennsylvania. And not to be outdone, at a $100 Florida’s tax would have been the highest.

"Peel Me a Grape" | by basykesIn December, the Florida Supreme Court heard arguments on the petition. Noteworthy was this scriptural riposte courtesy of Justice James Perry, “To much who is given, much is expected.”  Of course the easiest burdens to bear are somebody else’s.

‘Don’t worry about the mule going blind, keep loading the wagon.’

https://i0.wp.com/www.lawyersgunsmoneyblog.com/wp-content/uploads/2015/05/Earnings-of-solo-practitioners.png

Speaking, then, of the noble obligations of the so-called privileged, just last month I read about the falling average earnings of solo legal practitioners. Solos and small firms generally represent two-thirds of most U.S. lawyers.

In the last 25 years, average solo pay has fallen from $75,000 to $50,000 according to data compiled by University of Tennessee Law School Professor Benjamin Barton and cited in Professor Paul Campos’ post, The Collapsing Economics of Solo Legal Practice. Professor Barton’s new book, Glass Half Full: The Decline and Rebirth of the American Legal Profession was published last month.

And no matter that lawyer unemployment remains a problem in Florida or that 44% of all respondents to the Florida Bar’s last lawyer economics and law office management survey reported their business/profitability had decreased the past two years. In the same survey, almost 40% said they didn’t expect things to get better in the near future.

And then there’s this. According to Law School Transparency, nearly 85 percent of law graduates financed law school through student loans. The average debt incurred for 2010 law graduates was $77,364 at public law schools and $112,007 at private institutions. See “Burdened With Debt, Law School Graduates Struggle in Job Market.”

Now don’t get me wrong. I’m well aware that legal aid programs across the country are in continual budgetary crisis. And I’m not quibbling with the need, the rationale, or the petitioners’ parade of horribles. My objection is over the means. When did fixing a longstanding societal problem become the sole obligation of lawyers? By comparison, are physicians and dentists as a condition of practicing their professions likewise required to pony up for indigent healthcare services?

Fortunately for Florida lawyers — but not so much for legal aid advocates, petition opponents prevailed. Stating that the “issue requires further study and a more comprehensive approach,” the Florida Supremes declined to adopt the proposed amendment.”

Hat tip to The Legal Watchdog  for passing along the latest moves afoot in Florida.

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Photo Credits: “grape eating contest,” by denverkid at Flickr Creative Commons Attribution; “peel me a grape,” by Bev Sykes at Flickr Creative Commons Attribution.

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Wisconsin lawyer Michael Cicchini dropped another provocative “truth bomb” this week at The Legal Watchdog entitled, “The lawyer job market.”

https://i1.wp.com/img.wikinut.com/img/buwi66ndxqe7rzbw/jpeg/0/Talking-with-Hands-Wikimedia-Commons.jpeg

Cicchini posted about how ridiculously difficult it still is for jobless lawyers who are forced to choose self-employment when they’re unable to find full-time paying law firm work. An advertisement he recently received for work at the pleasure of the Racine Circuit Court made his point.

Despite an improving economy, new lawyers face daunting challenges. Blame the continuing glut of lawyers as well as irreversible changes to 21st century client expectations impacting the legal profession’s cost, profit and pricing structures.

While the good news is that the number of persons taking the Law School Admission Test has reached record lows, the transformative economic strictures continue to hold sway.

Preposterously penurious pay.

As for the advertisement Cicchini received, the County Circuit Court in Racine, Wisconsin is looking for an “advocate counsel” and the pay is an unbelievable $25,000 per year. Don’t expect expense reimbursement or job security. It’s terminable at-will.

The ad then goes on to state that “attorneys may be assigned any type of felony [including homicide], misdemeanor, juvenile, criminal traffic, and probate cases and any other action as the court orders . . . It is estimated that there will be about 70 – 80 assignments in 2015 per attorney.” Read the rest of Cicchini’s post here.

The quality of unfairness.

As an experienced criminal defense lawyer, Cicchini properly points out that this kind of caseload is “nearly impossible” for any lawyer — let alone a newbie hoping to do thorough, ethically unimpeachable legal work for clients.

Admittedly, there was more than enough in the court’s advertisement to annoy any lawyer — not the least being the overt professional discourtesy of lawyers trying to screw over other lawyers, i.e., those desperate enough to apply for such a demanding job at such penurious pay.

And who were the one’s being so discourteous? Cicchini speculates “this proposal was presumably authored with input from the Racine County judges themselves.”

But beyond exploiting economically hard-pressed young lawyers, there’s another even more disturbing consideration. What does this job say about exacerbating the continuing disparities of justice meted out to indigent defendants by overburdened, under-resourced public defenders? Studies have amply demonstrated that “public defenders do not have enough time to conduct thorough investigations, or meet with and provide quality representation for their clients – many of whom are low-income earners and people of color.” See, for instance, System Overload: The Costs of Under-Resourcing Public Defense.”

Ethical hazards.

But beyond the above-mentioned concerns, it was the potential ethical minefields created by the job that also got my dander up. As one commentator observed, “the deck is stacked” against solos as it is. Writing at “Ethical Hazards of Solo and Small Firm Practice,” Benjamin Cowgill axiomatically notes that nationwide, solos and small firms bear the brunt of most bar complaints. One reason, among many, arises from their chosen areas of practice, criminal defense being one of the riskier.

So what does this lousy job in Racine with its heavy caseload at rock-bottom pay say about how far ethical concerns are discounted in Cheesehead Land?

Politics Law & Finance 43Just a few years ago the Milwaukee Journal-Sentinel ran an excellent comprehensive investigative report about the sorry state of Wisconsin’s attorney discipline system. The newspaper reviewed almost 24,000 Wisconsin lawyers against state and federal court records and “found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.” It went on to underscore the patently obvious that “Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.

“Unlike many other states, where the licenses of lawyers convicted of serious crimes such as fraud are immediately suspended to give regulators time to determine the proper sanction, Wisconsin sometimes allows criminals to keep their law licenses even while they are behind bars.”

Hilariously hubristic hypocrisy.

So front and center comes this challenging low-paying job in Racine that just reeks of potential ethical hazard for the unwary and overburdened.

And yet, maybe I’m overstating the hazard? After all, it appears not much has changed since 2011, at least when it comes to lawyer discipline in Wisconsin. Indeed, earlier this summer there was a lawyer discipline case reported by “The Legal Profession Blog” ironically highlighting “Calls to Reform Wisconsin Attorney Discipline” made by none other than Chief Justice Shirley Abrahamsom and Justice David Prosser. Given the facts of that case, both expressed agreement on the need to study and reform the Wisconsin attorney discipline system.

But here was the irony and the not insignificant brass. Along with Justice Ann Walsh Bradley, the Wisconsin high court has hardly been an exemplar of professional comportment.
Some 6 months after the Milwaukee Journal Sentinel ran its investigative series on the state’s embarrassing absence of meaningful attorney discipline, Justice Bradley made headline-grabbing allegations involving her purported physical altercation with Justice Prosser. See “Bradley says Prosser choked her.”

But after all the he-said/she-said, no criminal charges were ever filed although Justice Prosser did get charged with ethics violations. However, lo and behold and consistent with how things apparently roll in Wisconsin, multiple recusals led to no quorum, which meant no determination of discipline could be made against Justice Prosser. So, the charges were dropped. Later the same year, he eked out a 7,006 reelection win over Joanne Kloppenburg.

And so he sits on the high bench in 2014 opining along with his chief justice who he previously disrespected about how Wisconsin’s attorney discipline system needs reform.

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Photo Credits: Talking with Hands, Wikimedia Commons; Half the pay, twice the work by Truthout.org at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License; Defense Counsel by Matt Freedman at Flickr, Attribution; bad jpg file in encrypted folder by Mike at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License.

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File:RandyOrton-chokehold.jpgHow’s that for an arresting quote? Haven’t heard such talk since my barrio East Los Angeles high school days. But as an instance of failed judicial temperament? Who’d of believed it?

I must need a recollection refresher as it’s been awhile since I last posted on judicial temperament and how justice But having just finished reading Kenosha, Wisconsin criminal defense lawyer Michael Cicchini’s excellent Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights and with overnight news that a judge allegedly opened up a can of whoop-ass on a public defender — well, I’m compelled to post today.

The incident caught on courtroom camera, except for the off-camera hallway fracas, took place in Brevard County, Florida. In one corner was Judge John C. Murphy, a Dayton Law School grad admitted to the bar in 1983 and an elected and reelected county judge the past 8 years. And in the other corner and on the receiving end of the judicial ire and supposed fisticuffs was Public Defender Andrew Weinstock. From the raw video, it’s reasonable to surmise some preexisting tension between the two purported combatants.

Tale of the tape.

https://i2.wp.com/i735.photobucket.com/albums/ww355/btothemo86/CanofWhoopAss375.gif

But what’s also clear, at least from the tape, is that the strained relations went beyond a loss of judicial patience with a public defender. No, it’s my opinion the judge was likely ‘pissed off’ by Weinstock’s unwillingness to plea out his client; and to succumb to court pressure; and to waive his client’s right to a speedy trial. “You know I’m the public defender. I have a right to be here and I have a right to stand and represent my client,” Weinstock is heard saying in response to Judge Murphy’s “You know, if I had a rock I would throw it at you right now.” 

Sixth Amendment Right to Speedy Trial.

But what about an accused’s right to a speedy trial? Read Chapter 8 in Cicchini’s illuminating book to learn how that works in the real world. Cicchini calls it another one of our “soft” constitutional rights. Consequently, it’s not so speedy and it’s honored more in the breach than observance. And then there are the consequences visited upon both defense lawyer and accused for presuming to insist on their rights.

Given Cicchini’s other recitations in his concise 163-page book about how government agents (police, prosecutors and judges) routinely circumvent our constitutional protections, I think that rather than an angry jurist, it’s the public that ought to be royally pissed. But we’re not. With civics hardly taught in school; with our fount of knowledge reduced to movies and television dramas; and with our tendencies toward holier-than-thou self-righteousness when someone else’s accused of a crime — our blissful ignorance keeps us pacified.

As for the Sixth Amendment right to a speedy trial, as Cicchini tells it, speedy-trial demands are discouraged. And judges will “not-so-subtly punish defense lawyers who make them.”  That said, I don’t think that when Cicchini wrote those words, even he envisioned what’s supposed to have occurred in Brevard County court yesterday.

But then again, my esteemed brethren and sistren of the criminal defense bar are NOT going to be shocked by such tales told in or out-of-school. Indeed, I bet most of them could add their own chapters and real-life examples to Cicchini’s book. They know all too well about what passes for the preservation of individual rights in criminal court. See for a recent example, Arizona criminal defense lawyer Matt Brown’s latest post, “Real Monsters,” about an octogenarian cancer patient and alleged victim caught up in a dilemma worthy of Franz Kafka. Or take this other instance of what passes for impartiality between a judge and his BFF prosecutor just posted by Pro Publica at “Startling Sidebar: Brooklyn Judge Gave Political Advice.”

man sleeping at deskAs for the rest of us still walking around with our eyes closed about the purported sanctity, inviolability and indomitability of our individual constitutional rights — save for the clueless knuckleheads applauding in Judge Murphy’s court — most of us are taken aback by such unseemly conduct and the report of a Judge accused of hitting attorney.” But most won’t read pass the titillating headlines to understand it was because of the lawyer’s defense of his client’s Sixth Amendment right in all criminal prosecutions to a speedy and public trial. And too bad our attention will be fleeting. Soon our self-assurance and complacency returns.

A teachable moment.

Politics Law & Finance 43Still it was no surprise the story made the newswires and even the morning news shows. Or by necessity that I had to parenthetically refer to Cicchini’s timely and topical take-down of “the world of criminal justice” and about the sorry state of our “soft” and “malleable” constitutional rights.

At the risk of invoking the banality of the ‘teachable moment,’ the stuff he writes about needs to be taught in our schools and not so as to, perish the thought, undermine our rose-colored faith in the system. No, it has to be taught to wake us up “about what really happens to ordinary people on a daily basis” when they’re caught in the maws of the criminal justice machine. Forewarned is forearmed. I urge every person reading this post to get a copy of Tried and Convicted.

And as a final add on the Brawl in Brevard, according to the Statement from Chief Justice John Harris, Judge Murphy will be taking a temporary leave of absence and has agreed to seek anger management counseling. Public Defender Weinstock took some time off. After the din dies down, I don’t expect much to happen to Judge Murphy (and hopefully nothing to lawyer Weinstock) although Florida’s ever tireless lords of discipline will almost certainly be poking proboscis into the matter.

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Photo Credits: Randy Orton chokehold, by Sean Refer, at Wikipedia Commons, Creative Commons Attribution-Share Alike 2.0 Generic license; can of whoopass, via photobucket, http://i735.photobucket.com/albums/ww355/btothemo86/CanofWhoopAss375.gif.

 

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